The daily morning Astorian. [volume] (Astoria, Oregon) 1883-1899, 1895-07-04

waters tneTeOlt mean uohtlnB on rthe
water.
/ cannot assent to view Of the law
which makes fisherman criminal while
drifting along with the current on Sun
GIiy and converts him into law-abidlng
citizen the moment his net happens to
catch on snag on the Washington side
of the channel. The Jurisdiction is both
upon the river and upon the waters OF the
river. What is river as defined by
law? EVERY river consists Of first, the
bed; second, the water; third. the banks
or shores"
Gould on Waters Sec. Al.
"A fresh water river, like tidal river,
is composed of the alveus, or bed, and the
water, but has banks instead Of shores"
Gould on Waters. Sec. b.
"a water course consists of bed, banks
and water"
Angel on Water Courses, Sec T.
Homk on Rivers. Sec. 6.
1 cite these definitions to show that the
word river in Its legal sense includes the
soil constituting its bed, as well as the
water flowing over the bed; so that when
the act Of congress granted concurrent
Jurisdiction on the Columbia river and Its
waters 1t drew the distinction that the
text books draw and substantially gave
the state such jurisdiction not only on
the water but over the river itself in
cluding that component part of the river
known as its bed And this view Is
supported by the decisions OF other states.
The act admitting Iowa into the Union
provided that said state should have con-
current Jurisdiction with Illinois upon the
Mississippi river. The act is hardly so
broad as our act of admission, and leaves
more room for construction as to the
extent of the jurisdiction conferred. In
the case Of the state of Iowa VS.. Mullen
defendant occupied a scow as a place Of
evil resort, and was indicted for main-
tanning a nuisance The boat was on
the east, or Illinois side OF the river,
and east of the middle channel and also
east of an island belonging to the state
Of Illinois. The boat had fioated against
sand bar of said island, and the reced-
ing water left 1t high and dry on the
sands. The court held that although ly-
Ing upon the sands 1t was upon the
river" within the intent of the act of
admission and that the courts Of Iowa
had jurisdiction to indlct and try the
defendant. And this view was upheld by
the supreme court In an exhaustive opin-
ion.
State VS.. Mullen, 35 Iowa, 199
The court among other things says:
"Does the fact that the boat at the time
of indictment and trial was on the east
side of the main channel of the river
resting temporarily on the rear Of the
island because the water had receded
from 1t, or for repairs, take 1t out of
the jurisdiction of this state? 1t seems
to us clearly that It does not. In the
eye of the law a crime committed on the
Nir aoto Oh lie
as much an offense perpetrated on the
river as though the vessel were at the
time afoat.
If 1t is not so. II follows that vessel
navigating the main channel of this Mis-
sissippi should run aground east of the
main channel, and the water should re-
cede leaving 1t upon the ground tempo
rarlly the state of Iowa would have no
jurisdiction Of crime committed on II
under such circumstances and hence
would arise the questions so difficult of
determination and which II was the pur-
pose of the act of congress to avoid
whether the act was committed one foot
east or west of the medium fllum aquae."
These reasons deemed so cogent by
the supreme court of Iowa apply with
equal force to the Columbia river and
to this case.
The sections of our admission act here
tofore cited were intended to enable the
people of either state to protect their ci-
tizens and property upon the river and to
preserve the fish which are the common
property of the citizens Of both states.
The Columbia Is, and was at the date
of Oregon's admission known to be a
river of changing channels and Of shift
ing sands, sometimes appearing at the
surface and sometimes forming shadows
below the surface.
To determine whether "a trap was To-
Gated north or south of where a partlc-
ular channel existed when Oregon was
admitted in 1859 would be practically
impossible In a criminal or even a civil
action. Each trial would require a new
survey of the ever changing channels and
constantly shifting sand banks Of the
river. Congress intended to prevent this,
and the language employed is adequate
for that purpose. The following authori-
ties support the view here expressed:
State VS.. Mullen supra.
Gilbert VS.. Moline, ETC., 10 Iowa, 319.
The Annie M. Smull, Sawyer.
12 Ency. Law. 296.
Admx VS.. Judd, 30 Mimi, 126
Keator, L. f., VS.. st. Croix Co., 9S N.
w. Rep, 529.
And the list might be extended indef-
nltely.
But 1t is urged that II such concurrent
jurisdiction Is upheld the state of Wash
ington can leglslate in regard to the
docks at Astoria, and the state OF Ore
gon can legislate in regard to the docks
at Ilwaco and Cathlamet.
If this were true 1t could furnish no
argument against the plain letter of the
In httt to
Docks, unlike fish traps and such struct-
ures as the one In question are built from
the main land into the river and when
built form artificial shores partalllng Of
the natural shores OF which they are ex-
tensions. This distinction Is noted and
pointed out In state VS.. Mullen, hereto
fore cited In r. r. Co. VS. Ward, End
Black 4S5, the action was to abate dam
projected from the Illinois side of the
Mississippi. 1t was held that the dam
being attached to the main shore became
part of the realty Of the state and not
subject to the Jurisdiction Of Iowa.
End block 1856.
Gilbert VS.. Moline, 10 Iowa 319.
The trap is no extension from the main
shore and does not partake of the nature
Of an artificial shore, like a dock or dam.
Another contention is that the words
concurrent JurlSulctlOn Dy the TWO
states imports that both states must
unite In legislation touching offenses COM
mltted on the river; that neither state
can by itself legislate for the whole
river; that the word Concurrent" means
acting or legislatlng together.
This contention has been refuted by the
courts In large number Of cases:
Keaton VS.. st. Croix, 3S N w 542
State VS.. Plants, rs West Va. 119.
Kendall VS.. United States, 12 Peters 623.
Sherlock VS.. Alling, "A Ind. 1884.
In the case first above cited the Wis
consin supreme court says: "Are the
words concurrent jurisdiction as thus
used to be construed as requiring the
joint assent Of both states TO such charter
or could Minnesota do so alone with a
corresponding right on the part of Wis
consin to grant a similar charter? II
such Joint action was neceaaarv m 1tva