Horst v. Columbia Contract Co.

BEAN, J. — 1. It is contended by defendant that the action is one to enforce a lien and that plaintiff’s remedy is in equity, and defendant challenges the jurisdiction of the law court. Section 5203, L. O. L., reads as follows: “If any person in the control of any steamboat or other water craft shall intentionally or negligently conduct or navigate the same so as to destroy or injure the property of another, such person and his employer shall each be liable in treble damages for the property so injured or destroyed, and such damages shall be a lien on such boat. ” As we read this statute it is to the same effect as though it read that if the property of another is injured as detailed, “such person and his employer and such boat shall be liable,” etc. The plaintiff in the first instance is not compelled to proceed against the offending boat, but may proceed by an action in personam against the owner or operator of the boat, and compel either party to pay, allowing the lien to re — 348 — main: Benbow v. The James Johns, 56 Or. 554 (108 Pac. 634); Benedict’s Admiralty Practice (3 ed.), § 204. The purpose of the statute was to prescribe the amount of the damages. The right of action existed prior thereto: Oregon Fisheries Co. v. Elmore Packing Co., 69 Or. 340, 343 (138 Pac. 862). This is not a suit to enforce' a lien. Therefore the law court had jurisdiction to try the cause. 2. Another preliminary question is raised by plaintiff who asserts that the bill of exceptions is insufficient to raise any question urged upon this appeal for the reason that the same consists of a transcript of all the proceedings upon the trial authenticated by the signature of the trial judge. The bill of exceptions includes all the testimony and exhibits, instructions to the jury, the exceptions reserved, and the requested instrhctions which were not given. By Section 171, Amended Laws 1913, 650, it is optional with the trial court to settle the bill of exceptions in the form required prior to the amendment of the statute, or to certify a bill of exceptions in the form of a transcript of the proceedings. This ruling was announced in an opinion by Mr. Justice McCamant in the case of Malloy v. Marshall-Wells Hardware Co., Or. Dec., Vol. 6, No. 1, p. 19 (173 Pac. 267), which had not been published at the time of the argument hérein. We follow the holding in that case. The main contention of counsel for defendant is that the court erred in charging the jury in regard to the fairway or main channel of the river and in regard to negligence predicated upon the same. The court defined negligence and instructed the jury in part as follows: Instruction V. “Both the plaintiff and the defendant had a right to use the waters of the Columbia Eiver for the respective purposes required by their — 349 — business, so long as they made such use with due respect to tbe rights of the other. "With respect to the duty of the defendant, the court will say to you that the defendant was not required, under the law, to maintain a special officer known as a lookout. The duty imposed on the defendant is that the defendant, through the persons in charge of the steamer were required to keep a lookout, a reasonable lookout, so as to avoid collision with any other craft that might be on the river. And if you believe from the- testimony that the persons in charge of this steamboat or tug failed in that respect then that would constitute negligence in this case.” Instruction VI. “Or if you should believe from the testimony that the defendant failed to use due and reasonable care with respect to keeping in the fairway or main channel of the river, then that would constitute negligence. ’ ’ Instruction XIX. “A Juror: There seems to be a little difference between the fairway and the dredged channel. I don’t quite understand that point. “The Court: The fairway and the dredged channel are practically the same thing. The fairway is the way in the river or whatever body of water it might be that is usually traversed by vessels engaged in navigation. It does not necessarily include the entire channel.” Instruction XX. “A Juror: Drawing a lesser amount of draft than what a large ship would, going down the channel, — an ordinaiy ship not drawing that amount of water would go on the fairway. “The Court: No, the fairway and the large channel are one and the same thing. Off the large channel the fairway may be used, but it is used at the peril of anyone using it. ” • Instruction XXI. “A Juror: A ship or steamboat has to keep in the little channel by rights? “The Court: There is no rule of law requiring it to do so, positive rule of law, it only becomes a question then as to whether the person in charge of the vessel is using reasonable care in doing so or not doing so, — that becomes a question of fact for the jury to de — 350 — termine under all the facts and circumstances of the case, — whether it would conform to the definition of negligence as given you by the Court.” Instruction XXIV. “A Juror: If they keep out of that fairway they do it at their own risk? “The Court: If they keep out of that fairway they may do so as long as they use reasonable care and caution or are not guilty of negligence as stated to you by the Court. There is no positive rule of law requiring them to be in there. It then becomes a question, whether in or out, whether they are exercising reasonable care.” Exceptions were saved by defendant’s counsel to all of these instructions except No. V. 3,4. The public is entitled to the free, uninterrupted and unobstructed use of a stream, from bank to bank, and throughout the length of the channel, susceptible of navigation by boats, at the ordinary stage of the water. Everyone has an equal right to the reasonable use of the water for all legitimate purposes of travel and transportation. The right of no one is absolute, but each in turn must give way to others. Each must obey the rules which have been established for the safe use of the stream, and must not make such use of it as to unreasonably interfere with the rights of others: 1 Parnham on Waters, § 27; Grould on Waters (3 ed.), § 86. The right to fish and the right to navigate are both natural rights. One cannot be exercised to the exclusion of the other. The right of navigation is paramount. This does not mean that a vessel may navigate a stream upon which there is fishing without due regard to the rights of a fisherman. No unnecessary damage shquld be done to a fishing boat or net. The paramount right of the larger craft cannot be exercised in a negligent manner and escape liability if unnecessary injury is done to the smaller boat: 1 Parnham on Waters, § 33a; Hopkins v. Norfolk & S. R. Co., — 351 — 131 N. C. 463 (42 S. E. 902). It was the duty of the defendant to use reasonable precaution to keep out of the way of plaintiff’s boat: 2 Fed. Stats. Ann., 181, Art. XXVI. “A fairway is water on which vessels of commerce habitually move”: 3 Words and Phrases, p. 2651; Johnnsson v. American Tug Boat Co., 85 Wash. 212 (147 Pac. 1147). 5. It is contended by counsel for defendant that the jury may have understood the charge to mean that it would constitute negligence for the defendant to navigate outside the main channel of the river. It is possible that the answers to some of the interrogatories by the jurors, if taken alone, might be so construed. Taking them all together, and particularly instruction XXIV, given at the close of the responses to the juror, they were plainly charged that the defendant was within its rights in navigating outside the fairway as long as it used reasonable care and caution and was not negligent while so doing. We think the charge to the jury conforms to the law as stated by the learned counsel for defendant, and that the jury was not informed that it would be negligence for the defendant to be off the fairway. Defendant’s counsel requested several instructions to the jury. By Instruction XVIII, the court informed the jury that the defendant’s steamer had the right of way over the fairway of the river because it was engaged in navigation. This was in substance in accordance with defendant’s requested Instruction No. IV. Request No. 5 was to the purport that navigators are required to use such care as is reasonable to avoid injuries to boats, seines and nets. This request was in substance given by the charge. It is complained by defendant that the jury was not instructed that a boat engaged in navigation on a navigable stream has the right to take her course, doing — 352 — no unnecessary damage. The court, however, in different language told the jury in effect that the “Maria” had the right of way over the fairway of the river because it was engaged in navigation. It must it seems to us be taken into consideration that the river where the accident occurred was more than a mile in width, and tbe dredged channel about 300 feet in width. Such being the case, the jury might reasonably have found that there was plenty of room on the river for the steamboat to run without interfering with the fishing boat, therefore the question whether it was necessary for the “Maria” to run down the small boat, or whether if there had been a proper lookout, and the fishing outfit had been discovered in due time the steamboat could not without inconvenience reasonably have veered so as not to have collided with the plaintiff ’s craft without changing her actual course on the river within the true meaning of the term “take her course,” were questions for the determination of the jury. Or stated differently, was it necessary for the “Maria” in conveniently navigating the Columbia to come in contact with the fishing boat? The steamboat should exercise her paramount right of navigation in a bona fide manner so as to do no unnecessary damage. Section 5203, L. O. L., recognizes this rule and declares a liability for an infraction thereof. These phases of the case were, we think, all properly submitted to the jury. As we understand the charge of the court the jury was informed that the steamboat had a right to navigate on any part of the river so long as it used reasonable care to prevent doing injury to plaintiff’s boat, and net. It may be that when off the regular channel navigating where it would more likely come in close proximity to fishing boats and nets, a steamboat exercising the care that a reasonably prudent man — 353 — would exercise, would be required to be more vigilant than in a place where such craft and paraphernalia is less likely to be. 6, 7. Defendant’s counsel requested the court to instruct the jury that, a boat engaged in navigation on a navigable stream is not obliged to stop or go out of .her way or wait on the movements of those managing a seine or net. This request might have been understood by the jury as giving the steamboat the right to proceed on her course on the river without any regard or care for the rights of the plaintiff fisherman, whether or not there was any necessity for taking a course, which would menace or destroy the small boat. If those in charge of the “Maria” saw the plaintiff’s boat or net, or were warned that the steamboat was approaching the same, it was their duty to change her course if that could be done without prejudice to the reasonable prosecution of her voyage. There was no error in refusing to charge the jury as requested: See G-ould on Waters (3 ed.), § 87. Defendant also complains that the court did not charge the jury, that the master of a vessel is not required to yield the channel to a fishing net.* It does not appear from the record that the plaintiff’s boat or fishing net was in the channel. If it had been, a different question would have been presented and an instruction in regard thereto wouid have become important: See Hopkins v. Norfolk & S. R. Co., 131 N. C. 463 (42 S. E. 902). Finding no error in the record the judgment of the lower court is affirmed. Affirmed. McBride, C. J., Moore and Johns, JJ., concur.