Fidalgo Island Canning Co. v. Womer

The opinion of the court was delivered by Mount, J. Lying to* the! east from Lopez Island, in San Juan county, several poound net fish traps* are located in the waters of Puget Sound, nearly on a line, as follows: Ho. 1850, owned by Carlisle Canning Co.; Ho*. 2565, owned by appellant Prank Womer, and Ho. 1766, owned by Lummi Island Pishing Co. To the northward of these traps is located Ho*. 29, owned by respondents. The relative locations of these traps are* shown by the following diagram: The flood tides upon which the fish run in these waters approach these traps from the southeast, and run in a northwesterly direction. Trap Ho*. 2565 is the last location, and the one on account of which this case arose*. At — 505 — the time this action was begun the appellant was extending the length of trap. Ho. 2565 until it encroached upon the end passage way between it and Ho. 1766. ■ The effect of this was to cut off the run of fish from Ho. 29. The action was brought to. restrain appellants from encroaching on this end passage way. From a decree' restraining the encroachment, this appeal is prosecuted. A number of errors are1 alleged, but all the errors are grouped and argued upon three assignments, as follows: (1). That the complaint and the findings of fact do not state facts sufficient to constitute a cause of action; (2) the findings of fact, made are against the preponderance of the evidence; (3) the court adopted an erroneous method of determining the end passage way. The complaint alleges that the Lummi Island Fishing Co. is the owner of location Ho. 1766, and in August, 1900, redrove the location piles as required by law, and plaintiffs have been informed and believe that said company will, construct and operate a trap thereon during the coming season. The complaint further states: “Thatafterwards,towit,aboutthefirstday of April, 1901, the. said defendant Frank Womer, aided and abetted by the defendant, the Carlisle Canning Company, a corporation, by and through the other defendants, the managing officers of said corporation, began the construction of a fish trap, on the said Frank Womer’s location, and in so doing wrongfully and fraudulently went out 600 feet beyond the outer end pile thereon and drove piles for the pot and hearts of said trap, and are now engaged in finishing said trap> which, when completed as now constructed, will extend out to' a point even with the inner end pile of the said Lummi Island Fishing Company’s location, and if not enjoined from so1 doing they will finish said construction and will hang a web on said piles, including the pot and heart now driven, in which case there will be no. end pas — 506 — sage between said trap and the trap'of the said Lummi Island Fishing Company when the same is constructed.” The complaint also- alleges that the fish run upon the flood tide, that this tide flows across these traps to- the northwest, and that, the obstruction of the end passage way between locations 1766 and 2565 will deprive and cut off from plaintiff’s said location the greater portion of the run of fish in that locality, and greatly injure plaintiff’s location Ho. 29. The statute provides, at § 4, Laws 1899, p. 197: “There shall he an end passage way of at least six hundred feet . . . between all pound nets, . constructed and placed within the waters of Puget Sound in this- state.” It i s argued by appellant, that because the statute provides that a pound net may extend for a length of 2,500 feet, and since the plaintiff is not the owner of 2565 or 1766, and the entire length of these two- locations is less than 2,500. that therefore plaintiff cannot complain when the entire distance is closed, because1 if the- two traps were, owned by one person that person, under the law, might legally extend his trap so- as to cover the whole space occupied by these two- trap.s. While this is probably correct, yet the law provides that between all pound nets, irrespective of the length, there shall be an end passage way of six hundred feet. While onei person may construct a trap 2,500 feet in length, yet he is not permitted to construct two independent traps, no- matter what their length, without leaving an end passage way between them of six hundred fee-t- it is further argued by appellant that, because the respondents allege in their complaint that plaintiffs have been informed and verily believe that the owners of Ho. 1766 will construct and operate, a trap, during the season of 1901, that there .is no such threatened injury as to warrant an injunction in this case, under the rule that “Equity — 507 — never interposes its extraordinary powers upon a mere apprehension of mischief, however well founded. The mischief must he certain, and its approach perilous.” Sargent v. Ohio & Mississippi R. R. Co., 1 Handy, 52; 1 High, Injunctions 760. The injury here complained of is not from the construction of Ho. 1766, because that location is a prior location unabandoned, which may be operated at any time, and which the owner testified was to be operated during the coming season; but the injury comes from Ho. 2565, a subsequent location, which the complaint states was being unlawfully constructed so. as to- encroach upon the end passage way of 1766, and that the appellant is engaged in constructing and finishing the same, and, unless restrained, will continue to finish the same, and thereby make plaintiff’s trap absolutely valueless. If it is true that the appellant encroached by the unlawful construction of his trap upon the end passage way of six hundred feet between his original location, Ho. 2565, and Ho. 1766, then, to the extent of such encroachment, appellant was constructing his trap in violation of law, and was therefore creating a nuisance per se. The nuisance was not only threatened, but appellant was in the act of creating it. Where it is shown that such nuisance causes special damages to the plaintiff, he may maintain an action to prevent the same. Morris v. Graham, 16 Wash. 343 (47 Pac. 752, 58 Am. St. Rep. 33); Carl v. West Aberdeen Land, etc., Co., 13 Wash. 616 (43 Pac. 890). After a careful reading of all the evidence, we think the court found the facts in accordance with the preponderance, thereof, that, the facts sustain the allegations in the complaint, and that the. complaint, is sufficient. It is next argued that the court adopted an erroneous method of determining the end passage way. The statute provides at § 1, Laws 1899, p. 197: — 508 — “For the purpose of determining end passage way a line shall be drawn parallel to the general direction of the shore line for one-half mile on either side of a proposed location, which parallel line shall intersect the outer end of any location theretofore made, and maintained as by law provided, and a new location shall be driven at least six hundred feet distant at right angles from such base line.” It was evidently supposed by the legislature that the first pound net located would be located so near shore that there would be no. opportunity to. locate another net nearer shore. In such event the application of the rule would be clear1 in all cases, and require no construction. But it was clearly the intention of the legislature to permit nets to be located inshore from other localities, provided there was room enough, but that in all cases there should be an end passage way of six hundred feet between traps. It could not have been meant that the parallel line to the general direction of the shore line should be drawn through the outer end of the prior location unless the proposed location was to be outside of such prior location. Where the subsequent location is inshore from the prior location, the parallel line must be drawn through the inner end of the location theretofore made, so as to be distant therefrom the required six hundred feet; otherwise locations would overlap each other, and thus defeat the provision that there shall be an end passage way of six hundred feet between all pound net traps. The words "outer end of any location theretofore made/'’ as used in the statute, must be held to refer to the end which is out towards the1 proposed new lo■cation, so that if the proposed location is in toward shore from the prior location the new location must be measured from tha inshore end of the prior location. This is the construction placed upon the statute by the lower court, and is, we think, correct. — 509 — There is no error in the record, and the canse will be affirmed. Beavis, O. J., and White, Anders, Fullerton, Dur-bar, and Hadley, JJ., concur.