Alitak Packing Co. v. Alaska Packers' Ass'n

BROWN, District Judge. The first one acquiring actual peaceable physical possession of a location on unoccupied public land of the United .States, not reserved from such location, placing substantial improvements thereon, continuing the same to completion with reasonable diligence, and maintaining same [279] for a lawful purpose, acquires the better right. All acts of giving notice or preparation, through thought, words, or acts, become immaterial, so it is not necessary to consider the matter of applying for or securing permits, licenses, dr materials. One cannot keep another from taking possession of an unoccupied site for a fish trap by putting up a notice or anchoring a buoy any more than he could acquire the exclusive right to a location on land to shoot a bear, or deer, or any other animals, by putting up a notice that he intended to occupy said site for such a purpose. It must therefore be found that the plaintiff acquired the first and better right to the location of its said trap No. 3. Section 262, Compiled Laws of Alaska, provides that no fish trap shall be located within 300 feet endwise or 1,800 feet lengthwise of any other trap. Defendants were required to measure and locate their said trap No. 7 1,800 feet away from plaintiff’s trap No. 2 and it is evident that Capt. Stindt, the employee of defendant in charge of the work, located said trap No. 7 within about 900 feet of plaintiff’s trap No. 3, under an honest belief that he had the prior and better right by reason of his notice and buoy marking the site, as he could not drive piling for this trap at said point on account of the rock bottom, and therefore had to construct a floating trap to be anchored at this point. This honest, though mistaken, belief would not as a matter of law entitle the defendant to a superior right to said location, if the plaintiff first, in point of time, acquired the actual physical possession of the location covered by said trap No. 3; but it is to be considered in this case, owing to the manner in which the fish run into and through the waters of said Moser Bay, and as affecting plaintiff’s right to an injunction. The salmon come into said Moser Bay from Alitak Bay and run northerly, reaching first the said plaintiff’s trap No. 3, then defendant’s trap No. 7 and then plaintiff’s trap No. 2. The testimony goes to show that the salmon continue on the same course until they reach some, fresh-water stream, toward the head of which they continue to strive. The plaintiff introduced some testimony tending to show that the fish work or drift backward on account of tides or other causes, from their continuous travel toward the fresh-water stream toward which they are heading. The defendant’s witnesses deny this, and testify that, while [280] the salmon play some in the currents and eddies, their trend is almost continuously in the direction in which they are running. To confirm this latter belief, the traps erected in that vicinity fish, only one way, on the southerly side of the trap, so that the fish, progressing in a northerly direction only, are caught; but, if any should turn and go to the southward again they could not go into the trap, unless they go clear around it, and then come up from the southerly side. If any number of fish returned southward, it would be reasonable to suppose that the trap would also be open into the heart on the northerly side, as the testimony shows this to be quite practicable. The significance of this is in the effort of the plaintiff to prove that its chances of catching fish in trap No. 3 were injured by defendant’s location and maintenance of its trap No. 7. Plaintiff has not furnished any such satisfactory evidence of its contention'as to establish this by any preponderance of the evidence, and I am forced to the conclusion that the defendant’s trap No. 7 does not in the least injure the plaintiff in its right to operate and maintain its trap No. 3. The testimony shows that the plaintiff in the season of 1920 caught in its trap No. 2 about 175,000 fish, in its trap No. 3 about 125,000, and the defendant caught in its trap No. 7 about 117,000. A preliminary hearing was had in this case last July, when the plaintiff sought to enjoin the defendant from operating its said trap No. 7, and the preliminary injunction was denied on the ground that no injury was shown to have been caused plaintiff by defendant’s operation of its trap No. 7. At that time there was no claim made by any of plaintiff’s witnesses that defendant’s trap No. 7 interfered with the fish going into its trap No. 3, but in the hearing of the cause at this time the plaintiff attempts to show by one or two witnesses that some fish do go back from the general course northward, and were prevented from reaching its trap No. 3 by the obstruction caused by defendant’s trap No. 7. One of plaintiff’s witnesses, however, who was probably in as good condition to know the habits and run of the fish as any one else, testified that he did not think said defendant’s trap No. 7 in any wise interfered with plaintiff’s trap No. 3. Defendant’s witnesses, were also positive that no such interference was caused, and I feel compelled to agree with that contention, [281] and to find that no injury is shown to have been caused to plaintiff by defendant’s operation of its trap No. 7. Plaintiff earnestly contends that any injury, however slight, would be sufficient to justify the issuance of an injunction, and cites 14 R. C. L. § 81, where it is said: “According to. some authorities, the rule stated is that, where the wrong complained of is willful, wanton, or unprovoked, the injunction should be granted, although the loss to the defendant will be greater than the injury to the plaintiff from its refusal, because in such a case the wrongdoer is not entitled to the benefit of any consideration in a court of equity. Where it appears that certain substantial and irreparable damages will result to a complainant by the injury complained of, an injunction will not be refused because by the granting of it greater damage and disadvantage will result to the defendant.” In this case, however, I do not believe that the act of the defendant was willful, wanton, or unprovoked, but was made in the honest, though it may be in the mistaken, belief that it had the better right by reason of its having secured a federal permit and territorial license, and was actually constructing its.floating trap, and had. marked the site by a buoy and other notice. This, taken in connection with the fact that no injury is shown to have resulted to plaintiff, would seem to require the exercise of a proper discretion in denying said injunction. “Mandatory injunctions are granted only in cases of necessity.” 14 R. O. L. par. 15, p. 317. Also: . “Where an injury is trivial, equity will not ordinarily interfere by injunction, or as in cases where the right has been 'established by law; but in order to justify such interposition the injury complained of must be substantial, and not merely technical or inconsequential.” 14 R,- C. L. par. 57, page 334, and cases there cited. It may be claimed that the reason for prohibiting a fish trap to be placed within 1,800 feet lengthwise of another fish trap is a matter of public policy, to prevent the depletion of fish, and not as a protection alone to the private interests of the owners of fish traps and it may be that the defendant is guilty of a technical violation of this law. However, this seems to be an exceptional case. The complaint in such case usually is against a trap occupying a position within 1,800 feet of another trap on the fishing side; that is, on the side from [282] which the fish run or approach, and no one ordinarily would place his trap within 1,800 feet of another trap on the non-fishing side, as the result would be to “work” his own trap. There might be conceivably be cases where this 1,800-feet rule would be difficult to apply, as, for instance, where two traps were set, one on each side of a narrow peninsula. In view of the peculiar conditions existing in this case, viz. what I believe to be the good faith of the defendant in claiming the right to locate its trap where it did, and the fact that no injury has been shown to result to the plaintiff,. I am of the opinion that the plaintiff in equity is not entitled to an injunction. The injunction will therefore be denied. Footnotes [1] <®=»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes