The daily morning Astorian. [volume] (Astoria, Oregon) 1883-1899, 1895-06-27
OREGON FISH LAWS
The Rights of Fishermen De-
fined Very Clearly.
COMPREHENSIVE OPINION
Judge McBride's Decision in the
Warren-COOk Controversy Far
Reaching and Important.
F. NJ. warren et al. vs.. john Service.

f. M. Warren ct al. VS.. John Service.
This is a suit brought by F. NJ. War
rem, r. Everdlng, Sylvester Farrell and
Mary Fitzpatrick against John Service
to prevent the defendant from maintain
ing an obstruction in the Columbia river,
which plaintiffs claim is so situated as
to prevent the plaintiffs from exercising
their right to fish for and take salmon
upon the waters of the Columbia opposite
Fitzpatrick's island in Clatsop county.
The plaintiffs allege that one John
Fitzpatrick, died seized of certain tide
lands which constitute a part Of what Is
known as Fitzpatrick island and that
Mary Fitzpatrick has an interest in her
own right in said lands, the other plain
tiffs being also In possession thereof.
That the same are so situated as to
afford special facilities not enjoyed by
the public at large for fishing for salmon
in the Columbia river, and that but for
the alleged obstruction complained Of the
plaintiffs by reason of the possession and
occupancy of said tide lands could and
would catch from said river large
quantity of salmon in said river to their
great profit. That in view of these
special advantages, incident to the pos
session and occupancy of said lands, the
plaintiffs, other than the said Mary Fitz-
patrick, have gone to great trouble and
expense in preparing to fish in said river
with the purpose of using said tide land
as a fishing station and availing them
selves of its advantages. That the fish
ing season will terminate Aug. 10 and that
the right of occupancy of all the plaintiffs
except Mary Fitzpatrick, will terminate
at said date.
That the defendant has placed and
Maintains a large scow in said river at
about 800 feet from the shore of said
river at low tide and that 1t is so an
chored as to prevent plaintiffs from ex-
ercising their common right of fishing
to their irreparable damage, etc. That
the said obstruction is placed there for
the purpose of injuring plaintiffs and
preventing them from fishing and for
no other purpose.
The answer, after denying most of the
allegations of the complaint alleges that
one ]. w. Cook purchased from the state
certain tide land on the Columbia river
and that defendant is Cooks lessee, and
the scow aforesaid is anchored by de-
fendant In about - feet of water and
about 90 feet from shore over said tide
land and that defendant is engaged in
fishing In said river and is using said scow
for the purpose of fishing, etc.
A temporary injunction was issued and
the scow removed, but Immediately there
after defendant commenced driving piles
preparatory to building fish trap in
about the same place occupied by the
scow and was arrested for violation Of
the injunction.
The case comes up for hearing on mo-
ton to dissolve the injunction.
The facts seem to be that the plaintiffs
except Mrs. Fitzpatrick, have leased from
the Fitzpatrick estate two parcels Of
tide land abutting ON the Columbia river
and that between those two parcels Is
small strip or wedge of tide land owned
by ]. w. Cook and leased by defendant.
The plaintiffs are accustomed when the
lands are overfowed by the tide to throw
a seine out from the front Of one Of these
parcels along the channel of the river,
down to the other parcel and then to
sweep in toward the shore dragging the
seine across the fats covered by the tide
including the strip owned by Cook and
leased by defendant and landing the seine
on their own land. The scow in ques-
tion seems to have been a large affair,
quite beyond what was necessary for the
defendant to use in his fishing, which
was done on a small scale with an ordin-
ary net. The result of mooring 1t In the
water that seems to have covered the
Cook strip of land was to entirely pre-
vent plaintiffs dragging their seine In
the tide waters from plaintiffs lower
parcel of tide land to the upper parcel
and practically to destroy the usefulness
of plaintiffs lands as a landing place for
seines and to render useless and abortive
the preparations they had made for sein-
ing at this point. The defendants sub
sequent action in driving piles on the tide
fats purchased by Cook tended still
further to the injury of plaintiffs.
, There was some question as to the
good faith of defendant in driving the
piles and very much question as to his
good faith in anchoring this large scow
in such a position as to interfere with
plaintiffs seining, but prefer to treat
the question as though both acts were
done in entire good faith aud with an
honest intent ON the part of the defend
ant to catch fish for his own profit and
not merely to use the business of fish
ing as pretext for annoying his neigh
bors.
And this case presents to my mind a
question of very grave Importance. Has
the owner of tide lands which are sub
merged at tides the right to place thereon
distractions that will prevent the pub
lie from fishing in the waters covering
such lands.
The right of fishing in navigable tide
waters is common and public to everyone:
Arnold vs.. Mandy /, Halstead /; Martin
VS.. Waddel 16, Peters 400; Parker VS.. Cut
ter 20. Maine 1853; Gould vs. Waters Chap.
/. The same authorities hold that such
common right Of fishing extends to tide
flats which are owned by private parties
And in a well considered case which has
never been questioned 1t was he'd that
the pubic had right to enter upon
such tide flats at low water when they
were bare to dig CLAIMS, Porter VS.. Shee-
han, Gray 435. So there can be no ques-
ton about the right Of plaintiffs, in COM
mon with the rest Of the public, to enter
upon these waters to drag seines or other
movable nets across them and take fish
from them. The state holds such lands
In trust for the people and q grant OF
tide lands will not be construed to give
to the grantee right to exclude the pub
lie from its common right to fish In the
waters covering them: Gould on Waters
sec. %, Ill. Cent. Railway Co. VS.. State
Of III, 10 Cup. Rep.
1t is contended that "a fish trap Is a Gus
tomary mode of fishing and therefore per-
missible. But In my opinion It Is only
permissible where It does not interfere
with other peoples common right to
fish or where 1t is not objected to, or
possibly where II has been maintained
for period equal to that prescribed for
limitation of actions concerning real
property The public have a common
right to fish in tide waters. A fish trap
interferes with this common right and
substitutes in place Of It a particular
privilege for particular person. No man
can be said to be exercising a right In
common with other persons when he
exercises 1t In such way as to ex-
clude all other persons from participating
In the exercise Of such right. And this
Is precisely what the defendant did when
he anchored his scow In the disputed
waters and drove down the piles for his
fish trap.
1t was contended that the legislature,
by regulating the size Of mesh Of the fish
trap and requiring light to be placed
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