Williams v. Seufert Bros.

BEAN, J. 1. The preliminary question as to the jurisdiction of the Circuit Court for Multnomah County should first be disposed of. It appears that the defendant R. E. Clanton, master fish warden, resides in the county of Multnomah and was there served with a summons in the cause. Two of the commissioners also resided in that county. All of the commissioners appeared generally and filed a demurrer. The defendant, Seufert Brothers Company, was served with a summons in Wasco County. After the defendant company made a special appearance and objected to the jurisdiction of the Circuit Court of Multnomah County and moved to quash the summons, and such application was denied, it answered to the merits. This answer of the defendant company, while in form still objecting to the jurisdiction of the court, invokes a determination of the rights of the respective parties, and was a general appearance. Therefore, however, we may consider the question of jurisdiction in the first instance upon the filing of the complaint and the service of the summons upon the defendants, the Circuit Court of Multnomah County acquired complete jurisdiction by the general appearance of the defendants when some of the defendants demurred, and when the defendant company answered to the merits. This principle is tersely enunciated by Mr. Justice Eakin in Jones v. Jones, 59 Or. 308 (117 Pac. 414). We considered a similar question in Sweeney v. Jackson County, 93 Or. 96 (178 Pac. 365, 370), where buttressed by a quotation from the opinion in the case of Sealy v. California Lumber Co., 19 Or. 94, — 172 — 97 (24 Pac. 197), we held that a party cannot invoke the jurisdiction of a court and obtain the benefit of the decree, if it is in his favor, and claim contrary to such adjudication when the result is adverse to him: See Belknap v. Charlton, 25 Or. 41 (34 Pac. 758), and Winter v. Union Packing Co., 51 Or. 97 (93 Pac. 930). We therefore conclude that the Circuit Court of Multnomah County had jurisdiction of the cause, in so far as the validity and efficacy of the licenses issued to the respective parties are concerned, upon which the main controversy hinges. In order to make the question in dispute clear, we state the facts in regard to the issuance of licenses at and near the point in controversy, commencing in 1914, when Seufert Brothers Company made application to the master fish warden for and was granted a license, numbered “0-1,” dated April 1, 1914, to operate a scow fish-wheel situated 28.53 chains north and 12 chains west of quarter-section comer between sections 1 and 36, Townships 1 and 2 North, Range 13 East, W. M., in the Columbia River. On March 23, 1914, Sam Williams made application for a license “to operate a fish-wheel in the Columbia River about two miles above The Dalles on the Oregon side at a place where I have had a wheel for three or four years. ’ ’ The following notation is on the application: “Lots 1 & 2 Sec. 1, Tp. 1 N., R. 13, E. W. M.” The license was issued and dated April 1, Í914. ' May 1, 1914, Williams applied- to have the location of the scow fish-wheel changed to read situated “on a point in the E. half of the S. W. % of Sec. 36, Tp. 2 N., R. 13, E., W. M., on the shore line of lands owned by the State of Oregon in front of Lot 3 of said Section.” The location was indorsed on the — 173 — license, and the following notation made thereon: “Location of wheel changed to conform with description hereon May 1, 1914.” May 1, 1915, Senfert Brothers Company made application for a license at the • same point described in its application and license in 1914, and license “0-31” was issued to it, and dated May 28, 1915. June 8, 1915, Williams applied to the master fish warden for a license to operate a scow fish-wheel at— “That certain point situated 28.53 chains north and 12 chains west of the quarter-section corner between section 1 in township 1 and section 36 in township 2, both townships north of range 13 east of the Willamette Meridian, in the county of Wasco, State of Oregon, at the point where I have heretofore secured and fished under state license.” The application was rejected for the reason that license numbered “0-31” had been issued to Seufert Brothers Company on May 28, 1915, for the identical place applied for. Mr. Williams was informed by letter from the master fish warden as follows: “At the meeting of the board of Fish and Carne Commissioners at the Governor's office in Salem on May 26th, after going into the matter, it was decided that, inasmuch as license had been granted to the Seufert Brothers Company upon application submitted in 1914 describing a certain identical point, that they had no option other than to order the renewal of said license, as application had been submitted conforming with the laws regulating such matters. “They also decided, and so instructed me, to renew the license of Sam Williams upon the renewal of application as submitted in 1914, provided that a renewal of the1 1914 license is desired. Therefore, should you still desire a license for a scow fish-wheel, it will be necessary for you to make an application describing the location required as was set — 174 — forth in the application submitted for a scow fish-wheel in 1914.” January 3, 1916, Seufert Brothers Company applied for a license for a scow fish-wheel at the same point as described in their applications and licenses for the years 1914 and 1915, and the license was issued and dated April 1, 1916. On April 5, 1916, Sam Williams applied for a license for a scow fish-wheel, describing the location “at my accustomed place described more particularly on margin hereof: (On margin) “Description of location: That certain , portion of the rocks which at low water constitute the South bank of the Columbia river opposite Lot numbered three in Section 36, Township 2 North of Range 13, East of the Willamette Meridian being in particular a certain point situated 28.53 chains North and 12 chains West of the quarter section corner between section 1 in Township one and Section 36 in Township two, both Townships North of Range 13 East of said Willamette Meridian in Wasco county, state of Oregon.” On May 5, 1916, a license was issued to him to operate a scow fish-wheel at the point described in the application, which is in effect identical with the location for the scow fish-wheel of Seufert Brothers Company described in their license of April 1, 1916. The gist of the controversy in this suit is in regard to the conflicting licenses issued to Seufert Brothers Company and plaintiff Williams in 1916, the other licenses having expired when this suit was brought. The importance of the - fishing industry in this state has demanded- and had the benefit of the judgment of the lawmakers of the state at several different times. Prior to 1914, it seems no definite point was named in the license for a scow fish-wheel. In — 175 — order to further regulate fishing in the Columbia River, Chapter 188, General Laws of Oregon 1915, p. 226, was enacted. Section 2 of this act reads thus: “The failure to renew the license, or make application therefor, for any fish-trap, pound-net, fish-wheel, or location for other fixed appliance, in any of the waters of this State on the first day of April of any year, shall constitute abandonment of the location.” Section 3, as amended, Laws of Oregon 1919, p. 648, directs that should the holder of a license neglect to construct the appliance called for during two consecutive years covered by his license, said location shall be deemed abandoned. Section 8, subd. (a), provides thus: . “Licenses herein required shall be issued to any qualified person or corporation by the Master Fish Warden, upon application therefor, and the payment of the license fees herein required; .a separate license shall be required for each trap, pound-net, set-net, fish-wheel or other fixed appliance, and for each seine and gill-net and dip-net, and for each person trolling for salmon in the waters of the Columbia River, and for each person other than employees engaged in the canning, packing or curing of food or shell fish, and for each person other than employees purchasing or selling food or shell fish, either as principal, agent or broker.” Section 8, subd. (c), of the act requires all applications for licenses to specify in detail the location of any fixed fishing appliance or seine. Section 1, Chapter 128, General Laws of Oregon 1913, p. 225, provides as follows: “It shall be unlawful for the Master Fish Warden or the Board of Fish Commissioners to grant a license to any person, firm, partnership or corporation, to build or set up fish-traps or any other fixed — 176 — fishing appliance, or drive piles therefor, in any locality in or on the Columbia Eiver and its tributaries _ in this State, when in their judgment the same interferes with a prior right of fishing.” 2. Within the limits prescribed by the Constitution, the state, in the exercise of its police power and for the welfare of all of it's citizens, can appropriately regulate the catching of fish in the waters of the state or those over which the States of Oregon and Washington have concurrent jurisdiction: State v. Hume, 52 Or. 1, 6 (95 Pac. 808); State v. Catholic, 75 Or. 367, 374 (147 Pac. 372, Ann. Cas. 1917B, 913); Monroe v. Withycombe, 84 Or. 328, 335 (165 Pac. 227). It appears from the section of the act first quoted, that in the legislative mind it was deemed best for all the citizens of the state, and in furtherance of the interests of the fishing industry, that in order for a person holding a license to fish with a fixed appliance at a certain point in the Columbia Eiver, to protect such right, he must apply for a renewal of the license on or before the first day of April of any year. This arrangement also would tend to prevent a failure to utilize the particular location. Prior to the enactment of Chapter 188 in 1915, “prior rights of fishing” do not appear to have been clearly defined or limited. 3, 4. The requirement that one holding a license to fish with a fixed appliance shall at some date as early as the first day of April of any year make application for the renewal of the license in order to retain the location is a reasonable one. Otherwise in cases of the abandonment of such fishing locations, citizens desiring to obtain a license and take fish at such abandoned location apparently could not make their arrangements and prepare for — 177 — securing food fish at the proper season, and consequently the industry would be retarded. If there were no regulation, it would tend to confusion and the disturbance of friendly relations between citizens. "We believe that the regulations provided for by the statute may well be made without fostering any monopoly or conferring any special privilege upon any citizen which upon the same terms is not granted to all citizens. It appears that in 1914 there was a conflict of claim between plaintiff, Williams, and. the defendant company in regard to a license to fish at the point in question. Prior to that time it seems that plaintiff had fished at different locations in the river and a part of the time at the point involved. In 1915, Seufert Brothers Company applied for a license at the point in controversy, before April 1st, and the license was regularly issued to it. Afterward, on June 8, 1915, Williams applied to the master fish warden for a license to operate a scow fish-wheel at the same point, and apparently copied a portion of the description of the point from the application of Seufert Brothers Company, and we think the application was properly rejected. In 1916, Seufert Brothers Company applied for a license for a scow fish-wheel at the point described, within the time specified by the statute and the license was issued April 1st. The application of Williams for the same kind of a license at the same point was not made until after April 1, 1916. On May 5, 1916, a license was issued to him to operate a scow fish-wheel at the point described. We are unable to see how this license to Williams could be issued without conflicting with the license of Seufert Brothers Company, and interfering with its prior right of fishing granted by its license of — 178 — April 1, 1916. The issuance of the Williams ’ license does not appear to be in consonance with the spirit of the act of 1913. Two solid bodies cannot occupy the same space at the same time. It appears that there is not space for two scow fish-wheels at the point in question. It seems that the board of fish and game commissioners investigated the matter of conflict between the two licenses, but did not issue any order to cancel the license of the defendant company. The license issued to plaintiff, Williams, May 5, 1916, was of no force or validity as against the license regularly issued to the defendant company April 1, 1916. It might happen that a license would be issued to a person by mistake or under such conditions that another person might be entitled to a license to fish at the same place. We do not see how the second license could be issued and be effective without a hearing and adjustment in case of such conflict, and the cancellation of the prior license. In our view the statute to which we have referred is determinative of the main question in this case. It is therefore unnecessary to consider the matter of title to the land adjacent to the river at the point of controversy. That question, should it arise, can be adjudicated in Wasco County. The decree of the lower court, as to each of the defendants, will be reversed and the suit dismissed. Neither party will recover costs in either court. Reversed. Suit Dismissed. McBride, C. J., and Johns and Benson, JJ., concur.